UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
March 4, 2011
UNITED STATES OF AMERICA,
SHANE BUCZEK, DEFENDANT.
The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
DECISION and ORDER
On November 5, 2010, Defendant, Shane Buczek, appearing pro se, with stand-by counsel, upon a plea of guilty (Docket Nos. 189, 191), was sentenced to a term of imprisonment of 12 months on Count 3 of the Indictment (possession of false identification document with intent to use to defraud the United States, in violation of 18 U.S.C. § 1028) to run concurrent to Count I of 09-CR-141S and Count 1 of 09-CR-121S, but consecutive to Count 2 of 09-CR-121S. Buczek was also sentenced to a one-year term of Supervised Release, to run concurrent with the term imposed in 09-CR-141S and 09-CR-121S (Docket No. 313 .) A Judgment of Conviction was entered on November 9, 2010. (Docket No. 314.) Buczek filed a Notice of Appeal on November 19, 2010. (Docket No. 317.)
Buczek has now filed what he has titled a "Void Judgment Motion," pursuant to Fed.R.Civ.P. 60(b)(4), and Fed.R.Evid. 301 and 302. (Docket No. 326.)*fn1 The Motion specifically states "Do Not Treat as a 28 U.S.C. § 2255 or Other Habeas Petition." (Id.)
Buczek claims, as he has repeatedly in the past, that the Judgment is void because the Court did not have jurisdiction over the offenses charged and for which he was convicted. For the reasons discussed below, the Motion is denied.
Rule 60(b) of the Federal Rules of Civil Procedure provides a procedural mechanism to seek relief from a final judgment or order in a civil case. Defendant cannot seek relief from his Judgment of Conviction pursuant to Rule 60(b) because the Rule applies to civil actions only. E.g., United States v. Porter, No. 03-CR-0129 (CPS), 2008 WL 64668, at *1 (E.D.N.Y., Jan. 3, 2008); United States v. Tate, No. 3:01CR98(SRU), 523 F.Supp.2d 165, 168 (D.Conn. 2007); United States v. Smith, 498 F.Supp.2d 517, 519 (N.D.N.Y. 2007); see also Fed.R.Civ.P. 1 (stating that the Federal Rules of Civil Procedure govern only suits that are civil in nature).
Buczek's criminal proceedings are governed by the Federal Rules of Criminal Procedure. Rule 34(a)(2) of those rules allows a defendant to move to arrest judgment if the court does not have jurisdiction of the offense charged, but a motion under Rule 34 must be made within 14 days after a plea of guilty.*fn2 Fed.R.Crim.P. 34(b). If the Court were to construe the instant Motion as one brought under Rule 34(a), it would be denied as untimely because it was not made within 14 days after the plea of guilty.
Typically, when a pro se litigant files a post-conviction motion, putatively brought under some other provision, the Court would be required to convert the motion, upon notice and an opportunity to withdraw the motion, to one brought under 28 U.S.C. § 2255. See Adams v. United States, 155 F.3d 582, 584 (2d Cir.1998) (per curiam). However, Buczek has specifically noted in the Motion that he does not wish the Motion to be construed as a Motion to Vacate under 28 U.S.C. § 2255 and, therefore, the Court will not convert the instant Motion to one brought under 28 U.S.C. § 2255.
IT IS HEREBY ORDERED, that Defendant Shane Buczek's Motion to Void the Judgment (Docket No. 326) is DENIED.
FURTHER, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Fed.R.App.P. 24(a)(3), that any appeal from this Decision and Order would not be taken in good faith and therefore the Court denies leave to appeal as a poor person from this Decision and Order.*fn3
Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Buffalo, New York
William M. Skretny